Mueller looks to bypass Trump pardons by working with NY attorney general on Manafort probe

AllahpunditPosted at 11:21 am on August 31, 2017

Sounds like Mueller was already talking to Trump nemesis Eric Schneiderman, the AG of New York State, before the Arpaio pardon happened. (Schneiderman was a driving force in the $25 million Trump University settlement and he took to investigating Trump’s charity during last year’s campaign.) But this story leaking a few days after Sheriff Joe went free, proving Trump’s willingness to grant clemency in controversial cases early in his presidency, is obviously a shot across the president’s bow. “If you’re thinking Manafort, Flynn, and members of the Trump family are going to be pardoned out of this mess,” Mueller seems to be saying to Trump, “think again.” After all, presidential pardons apply only to federal offenses. If Schneiderman wants to put the Trumps on trial for offenses committed under New York law based on evidence gathered by Mueller, there’s nothing the president can do.

But there are wrinkles.

Special counsel Robert Mueller’s team is working with New York Attorney General Eric Schneiderman on its investigation into Paul Manafort and his financial transactions, according to several people familiar with the matter…

The two teams have shared evidence and talked frequently in recent weeks about a potential case, these people said. One of the people familiar with progress on the case said both Mueller’s and Schneiderman’s teams have collected evidence on financial crimes, including potential money laundering…

State and federal prosecutors believe the prospect of a presidential pardon could affect whether Manafort decides to cooperate with investigators in the federal Trump investigation, said one of the people familiar with the matter.

The public doesn’t know much about the Russiagate probe but it’s clear as day that Manafort is a central figure and that Mueller’s working hard to squeeze him. That showy FBI raid at Manafort’s last month was obviously designed to intimidate him; Mueller’s office also hired a prosecutor whose specialty is getting suspects to roll over on their associates, with Manafort a prime target. Now here’s word that Mueller’s ready to come after Manafort in tandem with Schneiderman — unless, perhaps, he cooperates. Mueller and Schneiderman are warning him, essentially, that if he thinks he can clam up and wait for Trump to pardon him, he needs to reconsider. He’ll end up in a New York state pen even if he avoids a federal one.

It’s Trump’s bad luck that the attorneys general of each of the states most relevant to the Russiagate investigation are Democrats. Virginia, where a federal grand jury is looking at Mike Flynn, has Democrat Mark Herring as its AG; Lisa Madigan of Illinois, which was targeted for election-related hacking by Russians, is a Democrat as well, as is D.C. AG Karl Racine. The big threat is Schneiderman, though, since any funny business at Trump Tower would fall under his jurisdiction. And I don’t just mean Russia-related funny business: Any evidence gathered by Mueller of crimes committed by Trump or his family (within the statute of limitations) while they were private citizens in New York would be red meat for Schneiderman. Prosecuting associates of a sitting president who’s reviled by Democrats would be his ticket to political stardom, particularly if he ends up as the de facto lead prosecutor on the case because Trump either fires Mueller or pardons all the major Russiagate players. Schneiderman would see it as a launching pad to become governor and maybe eventually a presidential contender.

Under the U.S. Federal Rules of Criminal Procedure, federal grand jury materials, which are secret, may be requested by local prosecutors if the evidence shows a “violation of state law.”

If the special counsel probe ended prematurely, local prosecutors could request that material, from interviews with every witness Mueller brings before the grand jury to other secret evidence it reviewed.

If Mueller or his investigators were no longer working for the Justice Department, states could also consider hiring them as special prosecutors or investigators to work the state case.

Follow that last link and read all of NBC’s story, as it’s the most incisive piece I’ve found about the legal maneuvering to come. Trump does have a card to play here: Depending upon when exactly he pardons someone of federal Russiagate charges, he might be able to get them off the hook from state charges too thanks to state double-jeopardy laws. New York and Virginia bar local charges for a suspect who’s already faced federal “prosecution” for the same acts; the question for the courts would be how far a federal proceeding needs to get before it qualifies as a “prosecution” for purposes of those double-jeopardy laws. If Trump pardons Manafort and Flynn now, before they’ve even been charged with anything, that probably wouldn’t count as a “prosecution.” If he waits until they’ve been convicted and then pardons them, it would. What if he pardons them after they’ve been indicted but before they’ve been tried? Dunno. A blue state like New York could, of course, pass a law amending its double-jeopardy statute in some way to allow state prosecutions of Trump associates to go forward, but that would face constitutional challenges. Long story short, if Trump wants to maximize the odds that his people won’t do time even in a state prison, he needs to be patient. The longer the federal probe goes on, the more likely it is that a presidential pardon later would also blow up some state charges based on the same acts. Trump’s a patient man, right? Not impulsive in the slightest.

One lingering question: Although a pardon would save someone like Manafort from federal imprisonment and the prospect of a pardon gives Manafort a reason not to cooperate with Mueller against Trump now, pardoning him would also blow up his Fifth Amendment self-incrimination privilege. If Trump’s afraid that Manafort has dirt on him and might spill it, a pardon would leave Manafort in a position where he has to spill it if he’s subpoenaed to testify against Trump.